The European evidence warrant (EEW) replaces the system of mutual assistance in criminal matters between Member States for obtaining objects, documents and data for use in criminal proceedings. This framework decision establishes the procedures and safeguards for Member States, whereby EEWs are to be issued and executed.

ACT

Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

SUMMARY

The European evidence warrant (EEW) is a judicial decision, whereby objects, documents and data may be obtained from other Member States. The EEW is issued by competent authorities designated by the Member States. An issuing authority may be a judge, court, investigating magistrate, public prosecutor or other judicial authority. Member States must also designate the competent authorities for recognising and executing the EEW.

The EEW may be issued to request objects, documents and data from other Member States for the following types of proceedings:

criminal proceedings brought by or to be brought before a judicial authority for criminal offences under the national law of the issuing state;

proceedings brought by administrative authorities for acts that are punishable under the law of the issuing state where the decision may give rise to court proceedings;

proceedings brought by judicial authorities for acts that are punishable under the law of the issuing state where the decision may give rise to further court proceedings;

all of the above, for offences for which the issuing state may punish or hold liable a legal person.

The issuing state must ensure that the evidence requested is necessary and proportionate for these proceedings. In addition, the acquisition of such evidence under similar circumstances in the issuing state must be provided for in its national law. Only once these conditions are met may the EEW be issued.

When the competent authority of an issuing state has reasonable grounds to believe that relevant evidence is located on the territory of another Member State, it may transmit the EEW to the competent authority of that state. The EEW must be transmitted directly from the issuing to the executing authority and in a manner that leaves a written record. To this end, Member States may designate one or more central authorities that will assist the competent authorities. Member States may also take advantage of the secure telecommunications system of the European Judicial Network for the transmission of EEWs.

The EEW is to be recognised by the executing authority without any further formality. The executing authority shall take the necessary measures to execute the EEW, unless it decides to invoke a ground for non-recognition, non-execution or postponement. When the EEW has not been issued or validated by a judge, court, investigating magistrate or public prosecutor, the executing authority may decide not to carry out a search or seizure to execute the warrant. However, it must consult the competent authority of the issuing state before taking such a decision. Member States may declare that they require such validation when the executing measures in a similar domestic case must be ordered or supervised by a judge, court, investigating magistrate or public prosecutor under its law.

If not stipulated otherwise in the framework decision, the executing authority shall comply with the formalities indicated by the issuing authority. However, these formalities may not contradict the fundamental principles of law of the executing state.

The executing state may refuse to recognise or execute the EEW within 30 days of receiving it if:

the execution breaches the ne bis in idem principle;

in certain cases specified in the framework decision, the act is not an offence under its national law;

execution is not possible with the measures available to the executing authority in the specific case;

there is an immunity or privilege under the law of the executing state that makes its execution impossible;

it has not been validated by a judge, court, investigative magistrate or public prosecutor in the issuing state when so required;

the offence was committed on the territory of the executing state or outside the issuing state where the law of the executing state does not allow for legal proceedings;

it would harm national security interests;

the form is incomplete or incorrectly completed.

The recognition or execution of an EEW may only be subject to verification of double criminality if a search or seizure is required for its execution and if it is not related to the list of offences set out in the framework decision.

The executing state is to take possession of the evidence within 60 days from receiving the EEW, unless there are grounds for postponement.

Member States must ensure that all interested parties have access to legal remedies against the recognition and execution of an EEW. These remedies may be limited to cases where coercive measures are used. The actions are to be brought before a court in the executing state; however, the substantive reasons for issuing the EEW may only be brought before a court in the issuing state.